Berj Parseghian v. Tru Brands, Inc.

(Stanley Mosk Courthouse: Dept. 515) August 26, 2026 DEPARTMENT 515 LAW AND MOTION RULINGS

NATURE OF PROCEEDINGS: Hearing on Motion for Entry of Stipulated Consent Judgment The Motion for Entry of Stipulated Consent Judgment is granted. BACKGROUND Plaintiff Berj Parseghian, suing in the public interest (Plaintiff), filed this action against Tru Brands, Inc. (Defendant), alleging that Defendant's Trubar Plant Based Protein Bar exposes California consumers to lead and cadmium without the warning Proposition 65 requires. The sole cause of action is for Violation of Health and Safety Code Section 25249.6.

Plaintiff filed a Motion for Entry of Stipulated Consent Judgment. No Opposition was filed. LEGAL STANDARD The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) provides that "[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10." (Health & Saf. Code, Sec. 25249.6.)

A person may enforce Proposition 65 in the public interest after giving 60 days' notice of the alleged violation to the alleged violator, to the Attorney General, and to the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and only where no public prosecutor "has commenced and is diligently prosecuting an action against the violation." (Health & Saf. Code, Sec. 25249.7, subd. (d).) A notice alleging a violation of section 25249.6 must include a certificate of merit stating that the person executing it consulted someone with relevant experience or expertise who reviewed the data on the exposure, and that the person executing it believes "there is a reasonable and meritorious case for the private action." (IbIbid.)

When an action brought in the public interest settles, "the plaintiff shall submit the settlement, other than a voluntary dismissal in which no consideration is received from the defendant, to the court for approval upon noticed motion, and the court may approve the settlement only if the court makes all of the following findings: [P.] (A) The warning that is required by the settlement complies with this chapter. [P.] (B) The award of attorney's fees is reasonable under California law. [P.] (C) The penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b)." (Health & Saf.

Code, Sec. 25249.7, subd. (f)(4).) The plaintiff has "the burden of producing evidence sufficient to sustain each required finding" and must serve the motion and all supporting papers on the Attorney General, "who may appear and participate in a proceeding without intervening in the case." (Ibid., subd. (f)(5).) In assessing a civil penalty the Court considers "(A) The nature and extent of the violation. [P.] (B) The number of, and severity of, the violations. [P.] (C) The economic effect of the penalty on the violator. [P.] (D)

Whether the violator took good faith measures to comply with this chapter and the time these measures were taken. [P.] (E) The willfulness of the violator's misconduct. [P.] (F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole. [P.] (G) Any other factor that justice may require." (Health & Saf. Code, Sec. 25249.7, subd. (b)(2).) ANALYSIS I. Attorney General Notice Approval turns first on whether Plaintiff gave the notice Proposition 65 requires and served these papers on the Attorney General.

Plaintiff served a 60-Day Notice of Violation, with a certificate of merit, on Defendant, the Attorney General, the district attorneys of all 58 California counties, and the city attorneys of every California city with a population greater than 750,000. (Krikorian Decl., P.P. 5-6, Ex. A [Notice, certificate of merit, proof of service dated September 4, 2025, proof of service affidavit, and service list].) The Notice identified the Covered Product by name and universal product code, named lead and cadmium as the listed chemicals, described ingestion as the route of exposure, and stated that the packaging bore no Proposition 65 warning. (Krikorian Decl., Ex.

A.) No public prosecutor commenced an action on the Notice, and Plaintiff filed this action on February 6, 2026, more than 60 days after service. (Krikorian Decl., P.P. 5, 7-8.) Plaintiff submitted the proposed Consent Judgment to the Attorney General on June 16, 2026, the day the last signature was affixed. (Krikorian Decl., P. 11; Consent J., Sec. 16.) Plaintiff served the Motion, the supporting declaration, and the proposed judgment on the Attorney General's Proposition 65 unit on July 8, 2026, 49 days before this hearing. (Proof of Service (POS-040), p. 1 & attachment; Krikorian Decl., p. 6:22-25.)

Together those steps satisfy the service the statute and the implementing regulation require. (Health & Saf. Code, Sec. 25249.7, subd. (f)(5); Cal. Code Regs., tit. 11, Sec. 3003, subd. (a).) The Attorney General has neither appeared nor filed a response, and the regulation is explicit that "[t]he fact that the Attorney General does not object or otherwise respond to a settlement shall not be construed as endorsement of or concurrence in any settlement." (Cal. Code Regs., tit. 11, Sec. 3003, subd. (d).)

The Court therefore draws no inference from the silence. II. Warning Plaintiff argues that the injunctive relief the Consent Judgment imposes satisfies Proposition 65's warning requirement. (Mot., pp. 4-7.) Beginning 60 days after entry of judgment, every Covered Product that Defendant manufactures for sale in California, distributes for sale into California, or sells in California must meet a Daily Lead Exposure Level of no more than 0.5 micrograms of lead per day and a Daily Cadmium Exposure Level of no more than 4.1 micrograms of cadmium per day.

A Covered Product meeting neither level must bear a warning. (Consent J., Sec.Sec. 1.5, 3.1, 3.2.) Those two figures are the maximum allowable dose levels the Office of Environmental Health Hazard Assessment has adopted for lead and for oral exposure to cadmium. (Cal. Code Regs., tit. 27, Sec. 25805, subd. (b).) The Consent Judgment thus leaves the exposure level at which Proposition 65 requires a warning where the regulation sets it, and gives Defendant the choice between reformulation and

disclosure. The method of computation is stricter than the regulation. The Consent Judgment measures the daily exposure level by multiplying the concentration in the product by the largest serving size appearing on the label and by the largest number of recommended daily servings appearing on the label, and it treats a label silent on daily servings as one serving. (Consent J., Sec. 3.1.2.) Proposition 65 computes a consumer product exposure using "the reasonably anticipated rate of intake or exposure for average users of the consumer product, and not on a per capita basis for the general population." (Cal.

Code Regs., tit. 27, Sec. 25821, subd. (c).) For the same product the settlement's formula yields the higher figure, so it triggers the warning obligation in cases where the regulation alone may not. Where a warning is required, Defendant must use one of three prescribed forms. (Consent J., Sec. 3.2.) The first reads: "WARNING: Consuming this product can expose you to chemicals including [lead, which is known to the State of California to cause cancer] and [lead and/or cadmium], which is [are] known to the State of California to cause birth defects or other reproductive harm.

For more information go to www.P65Warnings.ca.gov/food." That is the safe harbor content for a food exposure warning addressing both a listed carcinogen and a listed reproductive toxicant. (Cal. Code Regs., tit. 27, Sec. 25607.2, subd. (a)(4).) The third reads: "WARNING: Can expose you to [lead, a carcinogen, and] [lead or cadmium], a reproductive toxicant. See www.P65Warnings.ca.gov/food," which is the short-form warning the same regulation supplies for that pair of hazards. (Ibid., subd. (b)(2)(C)(2).)

The second option names the same chemicals and the same hazards and states the reproductive hazard in the fuller phrase "birth defects or other reproductive harm," and a business is free to warn in words the safe harbor does not specify. (Cal. Code Regs., tit. 27, Sec. 25600, subd. (f).) The Consent Judgment also governs how the warning appears. It must be securely affixed to or printed on the label of each Covered Product, set off from surrounding information, and enclosed in a box. The word "WARNING" must appear in bold capital letters in a size no smaller than the largest other health or safety warning appearing on the label or the website, and the warning must be given in any foreign language in which the package carries consumer information.

For a Covered Product sold over the internet to a California delivery address, the warning must appear on the checkout page in full text or through a clearly marked hyperlink leading to a page prominently displaying the first or the second of the three warnings. (Consent J., Sec. 3.2.) Those terms follow the transmission requirements for food exposure warnings. (Cal. Code Regs., tit. 27, Sec. 25607.1, subds. (b), (c).) Defendant must add the phrase "cancer and" or "carcinogen and" where it has reason to believe the Daily Lead Exposure Level exceeds 15 micrograms of lead per day, which is the no significant risk level for oral exposure to lead. (Consent J., Sec. 3.2; Cal.

Code Regs., tit. 27, Sec. 25705, subd. (b)(1).) The injunctive relief does not apply to Covered Product that has left Defendant's possession and control before the compliance date, and the Consent Judgment releases all claims as to that product. (Consent J., Sec. 3.1.1.) Product already in the distribution chain may therefore be sold in California unwarned. That limit bears on how much of the marketplace the settlement covers. It does not affect the content of the warning the settlement requires, which is the

subject of subdivision (f)(4)(A). The Court concludes that the warning required by the Consent Judgment complies with Proposition 65. (Health & Saf. Code, Sec. 25249.7, subd. (f)(4)(A); see Cal. Code Regs., tit. 27, Sec. 25600, subd. (e) [a party to a court-ordered settlement establishing warning method or content "is deemed to be providing a 'clear and reasonable' warning for that exposure"].) III. Civil Penalty Plaintiff next argues that the $6,000 civil penalty is reasonable in light of the moderate nature of the alleged violation, Defendant's cooperation, and the payment's deterrent effect. (Mot., pp. 8-9.)

The Consent Judgment requires Defendant to pay a civil penalty of $6,000, apportioned 75 percent to the Office of Environmental Health Hazard Assessment and 25 percent to Plaintiff. (Consent J., Sec. 4.) Proposition 65 directs that apportionment. (Health & Saf. Code, Sec. 25249.12, subds. (c)(1), (d).) Health and Safety Code section 25249.7 provides "In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following: [P.] (A) The nature and extent of the violation. [P.] (B) The number of, and severity of, the violations. [P.] (C) The economic effect of the penalty on the violator. [P.] (D) Whether the violator took good faith measures to comply with this chapter and the time these measures were taken. [P.] (E) The willfulness of the violator's misconduct. [P.] (F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole. [P.] (G) Any other factor that justice may require."

Here, the record addresses most of the statutory factors. On the nature and extent of the violation, Plaintiff confirmed through third-party certified laboratory testing using inductively coupled plasma mass spectrometry that the Covered Product contained lead and cadmium at levels actionable under section 25249.6. (Krikorian Decl., P. 4.) Plaintiff describes those levels as several times the maximum allowable dose levels and well below 1,000 times them, which is the margin a maximum allowable dose level is built on. (Mot., p. 8:21-25; Cal.

Code Regs., tit. 27, Sec. 25805, subd. (a).) On the number and severity of the violations, Plaintiff argues that the factor counts for little in a settlement posture, because no number of violations has been adjudicated and Defendant would have contended, among other things, that the metals are naturally occurring and that any unwarned exposure was neither knowing nor intentional. (Mot., pp. 8-9, fn. 1.) The Court accepts that account. Where a case settles before those contentions are tested, no adjudicated count of violations exists to weigh, and the negotiated amount reflects the risk each side ran.

On good faith, the parties exchanged information and documentation throughout, agreed to the terms now before the Court, and Defendant has undertaken either to reformulate the Covered Product or to warn. (Krikorian Decl., P.P. 9-10, 13; Consent J., Sec.Sec. 3.1, 3.2.) Nothing in the record suggests willfulness. On deterrence, the penalty is non-contingent, and federal law denies Defendant any deduction for it. (26 U.S.C. Sec. 162(f).) Testing a consumer product for lead and cadmium costs a few hundred dollars, so a manufacturer weighing that expense against the exposure a violation creates has reason to test. (Mot., p. 9, fn. 3.)

Plaintiff offers no evidence of Defendant's financial condition, so the economic effect of the penalty on the violator cannot be weighed. However, as Defendant has agreed to it, the Court infers it is not excessive, and even if

the economic effect of the penalty is small, the other factors weigh in favor of it. The Court finds that the $6,000 civil penalty is reasonable. (Health & Saf. Code, Sec. 25249.7, subds. (b)(2), (f)(4)(C).) IV. Attorney Fees Plaintiff finally argues that the $34,000 the Consent Judgment requires Defendant to pay Plaintiff's counsel is reasonable under California law. (Mot., pp. 7-8.) A fee term in a Proposition 65 settlement must be "reasonable under California law." (Health & Saf. Code, Sec. 25249.7, subd. (f)(4)(B).)

The inquiry begins with the lodestar, "the number of hours reasonably expended multiplied by the reasonable hourly rate," and the lodestar "may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) A party seeking fees "bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." (Christian Research Institute v.

Alnor (2008) 165 Cal.App.4th 1315, 1320.) Because this fee is a negotiated settlement term, "[t]he fact that the fee award is part of a settlement, however, may justify applying a somewhat less exacting review of each element of the fee claim than would be applied in a contested fee application." (Cal. Code Regs., tit. 11, Sec. 3201.) Plaintiff also grounds the fee in contract, on the theory that a consent judgment rests on the parties' agreement. (Mot., p. 7:12-22.) The lodestar analysis resolves the question, and the alternative ground needs no separate treatment.

Counsel request $550 per hour for Tro Krikorian and $600 per hour for Vache Thomassian and Caspar Jivalagian. (Krikorian Decl., pp. 4-5.) Krikorian was admitted in 2017, manages the firm's environmental law department, and has devoted recent years to Proposition 65 enforcement on behalf of consumers and the general public. (Krikorian Decl., p. 4, Ex. D.) Thomassian was admitted in 2013 and Jivalagian in 2012, and both are managing partners of the firm. The declaration describes Thomassian's practice as personal injury and wage and hour litigation and Jivalagian's as personal injury and workers' compensation, and ties neither to Proposition 65. (Krikorian Decl., pp. 4-5.)

Between them they billed 15 hours, and their years in practice support the rate they ask for those hours. Rates in this range are consistent with what attorneys of comparable skill and experience command in the Los Angeles market. (See Cal. Code Regs., tit. 11, Sec. 3201, subd. (d).) Krikorian expended 44 hours, Thomassian 9, and Jivalagian 6, for 59 hours distributed across nine categories running from the pre-notice investigation and analysis of the test report through preparation of this Motion. (Krikorian Decl., pp. 5-6.)

At the requested rates those hours yield a lodestar of $33,200, not the $34,000 the declaration reports. (Krikorian Decl., p. 5:17.) However, that does not include the additioanl time Krikorian anticipated spending attending the hearing on this Motion, nor $4,500 Plaintiff's counsel separately claim in unreimbursed expenses. (Krikorian Decl., p. 6:17-20.) The Court finds that the $34,000 payment for attorney fees and costs is reasonable.

V. Entry of Judgment The parties executed the Consent Judgment in June 2026 and agreed that it takes effect only on approval and entry by the Court. (Consent J., Sec.Sec. 12, 16.) The Consent Judgment retains jurisdiction to implement or modify its terms, and the proposed judgment records the parties' written request that the Court also retain jurisdiction to enforce the settlement under Code of Civil Procedure section 664.6. (Consent J., Sec. 15; Proposed Judgment, p. 2.) Where parties stipulate in a signed writing to settle a case, the Court may enter judgment on the terms of the settlement and, on the parties' request, may retain jurisdiction to enforce the settlement until its terms are performed in full. (Code Civ.

Proc., Sec. 664.6, subd. (a).) The Court approves the Stipulated Consent Judgment, will enter judgment on its terms, and retains jurisdiction under section 664.6 to enforce the settlement. CONCLUSION The Motion for Entry of Stipulated Consent Judgment is granted. | Home -->)" -->